Nivedita Menon is a feminist writer and a political and social activist. She is a professor of political thought at Jawaharlal Nehru University, and writes for newspapers, the Economic and Political Weekly and for Kafila.org. She is also the author of ‘Recovering Subversion: Feminist Politics Beyond the Law’ (2004) and ‘Seeing Like A Feminist’ (2012). She is also the editor of ‘Gender and Politics in India’ (1999) and ‘Sexualities’ (2008).

In this email interview by Shweta Krishnan, she speaks about feminism and the notion of trying “to disorder established patterns and to denaturalise what has come to be presented as eternal and unchanging”.

Shweta Krishnan: Could you tell us a little bit about yourself and how you came to be interested in feminism, law and the politics of subversion?

Nivedita Menon: As a university student in Delhi from 1978 into the 1980s, the vibrant presence of articulate feminist voices was very clear in public spaces, like protests against beauty contests in Delhi University. I was then Treasurer of the students’ union of my college (Lady Shri Ram College), and we also ended the Miss LSR contest, replacing it with a Freshers’ Talent Contest. Delhi was also alive then with protests against dowry murder. The visceral sense I’d had from childhood of there being something wrong with the world for women, began to find intellectual resonances initially in Germaine Greer, Gloria Steinem and Betty Friedan, and gradually I started meeting Indian feminists at protests and at Women’s Studies conferences, and reading their work.

My interest in the law really began when I was beginning my PhD work. It seemed like a strange paradox that emerged in the early 1990s, when the first organised voices against unrestricted rights to abortion in India were the feminists, speaking up against selective abortion of female foetuses. As you know, the perspective of the women’s movement on this issue has changed considerably since then, and there is a clear understanding that our problem is with pre natal sex testing, not with abortions per se, but this understanding has taken some time to emerge, in response to internal debates and critiques.

Once I started thinking about the law and rights, I began to see similar issues with feminist understandings of sexual violence, and as an insider to the movement, in a self critical mode, I started developing the critique that eventually emerged in ‘Recovering Subversion’.

SK: The title of your book ‘Seeing Like A Feminist’ seems to emphasise the gaze. How much do you think our perception of women’s sexualities is affected by the dominance of the male gaze? And what does it mean to ‘see’ like a feminist?

NM: The idea of a ‘male gaze’ has been considerably rethought by now, with the shift in focus in performance and media scholarship from the gaze of the camera to its reception by the viewer. In a parallel move to the idea of the Death of the Author (signalling the birth of the Reader), feminist scholarship has been since the late 1990’s thinking about the subversion of intended meanings (of the camera) by different kinds of feminist and queer receptions. Of course at one level the commodification and objectification of women’s bodies continues, but we also now take strong anti censorship positions, insisting rather, on challenging this phenomenon with a proliferation of other images that are feminist and queer. It is no longer clear that the male gaze is ‘dominant’ – it is powerful certainly, but the male gaze is also fragmented by queer homo erotic desire, and when a hetero patriarchal male gaze looks out, that gaze is often returned subversively.

To ‘see like a feminist’ though, as I have explained, is inspired by James Scott’s ‘Seeing Like a State’, in which he argues that the state works in various ways to render legible to itself, heterogeneous social practices. I take off from that understanding to suggest that to see like a feminist is to do the opposite, it is to disorder established patterns and to denaturalise what has come to be presented as eternal and unchanging.

SK: Female sexuality is often discussed in relation to incidents of violence against women. While it is extremely important to address violence, do you think there is a need for broader dialogues on women’s sexuality?

NM: It is inevitable that feminism would concern itself with sexuality as violence, given the relentless and universal condition of sexual violence that women find themselves in. However it has also become clearer for us that we need to recognise and understand sexuality as pleasure. While the former can only produce woman as victim, once we start focusing on pleasure we can reclaim female agency and enter into domains that are subversive of heteropatriarchy.

SK: A lot of dialogue on women’s rights tends to take a protective stance: be it dialogues on rape or dialogues on sex-selection. From a feminist standpoint, how would you say this affects women? Please tell us about alternative ways of articulating these issues.

NM: To move from protectionism to complex notions of agency is critical for feminism today. This means giving up on some long unquestioned feminist positions around emotive issues such as violence, pornography, sex work and sex selective abortion. Even as we recognise that ‘choice’ is never free, but made under determinate socio-economic and cultural conditions, we still must make a distinction between a choice freely made under those constraints and a situation of coercion. This means for instance, respecting choices women make to abort disabled or female foetuses just as we respect their choice to abort a foetus for other reasons – such as because of the lack of social responsibility for child care which means that individual women have to choose between a child and a fulfilling career. Or respecting women who choose sex work over other kinds of work they find more degrading and less remunerative. The focus on ‘rights’ invariably involves asking the state to act through law, to bring about certain situations that ‘freeze’ agency, in my opinion. I have discussed this argument at length in my book ‘Recovering Subversion: Feminist Politics beyond the Law’, which as the title suggests, counter poses a radical subversive politics against the governmentality of the law. The decisive transformation of ground level common sense that you see today in India, the churnings around feminism, queer politics and subversive desire, are not consequences of legal interventions, but on the contrary, unusual judgements like the Delhi High Court judgement reading down Section 377 reflect the power of these kinds of transformations.

I would also make a distinction between legal interventions to remove debilitating, discriminatory and criminalising provisions such as Section 377, which are necessary, and legal interventions that attempt to bring about social transformations. In my opinion, the law is about restoring and stabilising identities, while a queer feminist politics is about constant destabilising of identities, so the former strategy often runs counter to a feminist ethics.

What I mean by this may seem somewhat counter-intuitive to general feminist common sense, which believes that whatever its limitations, the law can be forced to bring about transformations we desire. Of course, the legal campaign as a strategy has thrown up many doubts and questions and it has not been resorted to by feminists in an unthinking manner. There have been three decades of feminist legal campaigns accompanied by growing unease within the movement about the consequences of engaging with the law. At most, women’s groups see legal reform as a broad strategy to achieve legitimacy and social recognition, and some short-term legal redress.

The main lines of criticism of the legal strategy from within the movement have been a) that the law is not enough, it can only be part of a wider struggle, b) that more legislation often means only increasing state control, and c) that legal reform offers no challenge to the social and systemic basis of the oppression of women.

But I am suggesting that we need to come to terms with a more radical conclusion. We need to recognise that we (feminists as well as other social movements) may have reached the limits of the emancipatory potential of the language of rights which gives us an entry point into the realm of law. As we have seen in the case of the issues of abortion and sexual violence, law may no longer offer us even the short term legal redress which is all that most women’s groups expect. On the contrary, the functioning of legal discourse tends to subvert the ethical impulse of subordinate groups, and to reassert dominant values. This is because, I argue, the ‘rights’ on the basis of which we claim legal action are informed by moral and ethical values, which are specific to our particular world-view. Rights are not inherent in human beings, they are not natural and universal, but are constituted by different kinds of political practice. Law, on the other hand, is a realm in which diverse conceptions of rights compete, and since the law seeks uniformity and concrete identities, it tends to flatten all ambiguity and multiplicity to fit dominant norms.

It was in recognition of the ways in which legal discourse hijacks feminist politics that a feminist legal activist once said to me that she would rather lose a rape case if in the process the right kind of debate were made possible. But are these two eventualities compatible with each other? If the case were conducted in such a way that the ‘right’ issues were raised from a feminist perspective, but conviction was not secured, that is, if the feminist argument lost the case, would it not ‘prove’ to society that these values are not ‘right’ but ‘wrong’? The overwhelming legitimacy accorded to legal discourse makes it impossible to engage with it except on its own terms.

Recognising that categories of identity do not ‘naturally’ exist, but are constructed by our political practice, we need to surrender the belief that they can be given the meaning and force we desire through the validation of the law. Insofar as the law exists, and is an influential force, we cannot withdraw from its orbit, but it is counter-productive at this historical moment to seek positive changes through legislation. Not only will such changes not be brought about, we would in the process, embed ourselves further in the very values we seek to transform. This is more than simply the failure of law at a particular point in history. What this intensely engaged debate suggests is that in the four hundred years since the law emerged as an emancipatory tool, the political landscape has been irretrievably transformed, so that while the law may not have failed us, we may have outgrown the law.

SK: So are you suggesting that we should not turn to the law at all?

NM: Not at all, this is not a call to withdraw from the arena of the state and the law. Indeed, the point precisely is that we have to accept that we cannot think in such terms any longer – neither that of seeing the law as the agent of transformation, nor of seceding from the realm of the law altogether, although for different reasons. The option of abdicating the law is not a viable one, for the law will not abdicate us – the only permissible identities in modern democracies are those put in place by the law. We are inextricably implicated in state and legal procedures – every aspect of my identity is legally established – as woman, as Hindu, as upper-caste. But precisely for this reason, because the regulating and defining force of the law is directed towards the creating and naturalising of specific, governable identities, the law cannot be a ‘subversive site’. At best we may be able to use existing provisions creatively, or campaign to repeal constraining provisions – in this way, we would be able to negotiate some spaces outside and around prescribed identities. The term ‘subversion’ however, is too strong for such a limited exercise.

Here it is useful to consider the distinction made by some feminists between law reform strategies and litigation strategies. Law reform strategies seek to bring about new legislation to give legal recognition to rights claims, while litigation strategies use existing laws either aggressively or defensively to advance such claims. It should be clear that it is the latter strategy that I see as the only viable one. It can also only be a very partial one in the task of an emancipatory politics.

We need to distinguish between a radical political practice that seeks to redefine the very terrain of politics, and the kind of fire-fighting exercise that we find ourselves caught up in all the time. Faced, for example, with a situation like the state sponsored carnage in Gujarat in 2002, we have no option but to call upon the constitutional provisions that will bring the perpetrators to book. Just as, faced with a rape, we may well get involved in a campaign to bring about a conviction under existing laws.

But surely our political practice has to go beyond simply dealing with the day-to-day crises generated in a patriarchal/sexist/communal/casteist society? What is our long-term agenda to challenge the very terms set by this framework? It is in order to evolve the latter that we need to think beyond appeals to the law and the state. What I do argue is that while law-reform strategy may offer some temporary and short-term redress, especially if we are dealing with discriminatory legislation, say, we are mistaken in turning to the law to produce new rights, or to emancipate us.

To move away from legal and state centred conceptions of political practice is to think creatively about new forms of political engagement that are located in realms we have not seriously engaged with. We need to evolve the kind of political practice that will work at capturing the meaning of terms in our language. Our understanding should become the common sense – that should be our political goal. In short, the project of a radical democratic practice is nothing less than the hegemonising of common sense.

This interview is being published in two parts. Do read Part Two on March 15, 2015 !